Last words.
  • Last words.
Yesterday the Supreme Court heard from Washington Attorney General Rob McKenna and right-wing activist attorney James Bopp in oral arguments for Doe v. Reed, a case with vast ramifications for open government laws around the nation. But amid all the hubbub over legal precedent, alleged political intimidation, and Justice Antonin Scalia’s impressively harsh tongue, another significant fact got short shrift: yesterday was Justice John Paul Stevens’s final oral argument.

He turned ninety earlier this month, and he will retire this summer after 35 years on the Supreme Court.

Stevens is known as the leader of the liberal wing of the court, which is slightly ironic considering that he was appointed by Republican president Gerald Ford. (Although, to be fair, the Republican Party of those days had room for moderates, and even liberals, unlike today’s party of monolithic right-wing extremism.) He has a reputation for listening carefully to both sides, and to his fellow justices (so he can attempt to sway the swing votes later), a habit that often prevents him from saying much during an oral argument’s opening half.

The habit held true for Doe v. Reed, although Stevens spoke even less than usual during his last day on the bench. Throughout the morning he sat silently to the right of Chief Justice John Roberts. He looked small, even shrunken, peering down at the scene before him, his signature bow tie just barely visible.

Stevens only made one point during Doe v. Reed, but his contribution emphasized the civility he brings to the Supreme Court, a trait that will be sorely missed when he is gone. It came while Bopp argued with Justice Ruth Bader Ginsburg about the public’s interest in keeping petition signatures open to viewing (she argued it was a good way to prevent fraud, Bopp equivocated). Then Stevens finally piped up.

JUSTICE STEVENS: Isn't there another possible public interest? Would it be legitimate public interest to say, I would like to know who signed the petition, because I would like to try to persuade them that their views should be modified? Is there public interest in encouraging debate on the underlying issue?

MR. BOPP: Well, it's possible, but we think this information is marginal. In other words, the—it's much more important—

JUSTICE STEVENS: Well, it does identify people who have a—a particular point of view on a public issue. And if you have the other point of view, don't you have an interest in finding out who you would like to convince to change their minds?

MR. BOPP: Well, we—we think it's a—a very marginal interest.

This exchange highlights how out of place Stevens is in contemporary American politics. Can you imagine any other major political player pondering the social utility of citizens calling each other up and discussing their disagreements sensibly? While I love the idea, I can’t imagine it would be very popular—like Bopp, I imagine it would be "a marginal interest."

But the fact that this is Stevens’s final question on the Supreme Court feels fitting to me. He goes out suggesting that perhaps citizens, and partisans, just want to do what he has been doing his whole career: respectfully trying to bring others over to his side of an issue.